Floor Statements

Mr. President, I ask unanimous consent that the Committee on Commerce, Science, and Transportation be authorized to meet during the session of the Senate on November 30, 2011, at 2:30 p.m., in room 253 of the Russell Senate Office Building.

Mr. President, I ask unanimous consent that the Committee on Veterans' Affairs be authorized to meet during the session on November 30, 2011. The Committee will meet in room 418 of the Russell Senate Office Building beginning at 10 a.m.

Mr. President, I ask unanimous consent that the Committee on the Judiciary, Subcommittee on the Constitution, Civil Rights and Human Rights, be authorized to meet during the session of the Senate, on November 30, 2011, at 10 a.m., in room SD-226 of the Dirksen Senate Office Building, to conduct a hearing entitled ``A Balanced Budget Amendment: The Perils of Constitutionalizing the Budget Debate.''

Mr. President, I ask unanimous consent that the Special Committee on Aging be authorized to meet during the session of the Senate on November 30, 2011, at 2 p.m., in room 562 of the Dirksen Senate Office Building to conduct a hearing entitled: ``Overprescribed: The Human and Taxpayers' Costs of Antipsychotics in Nursing Homes.''

Mr. President, I ask unanimous consent that the time between now and 12:15 be equally divided between myself, working with Senator McCain in opposition to the Udall amendment, and controlled by Senator Udall.

I understand there is a pending UC that Senator Udall is to be recognized.

Mr. President, we have approximately a half hour on each side. I am wondering how much time Senator Graham needs?

Could you do 5 minutes?

We have, I think, seven speakers on this side.

Can you try to do 8 minutes?

I yield 8 minutes.

The Senator from Arizona will control, if this is all right with the Senator, half of our time. Will that be all right?

Mr. President, I yield myself 10 minutes.

There have been so many misstatements and facts that have been made, it is hard to keep up with them. Let me just take the last statement the Senator from Illinois made about changing military tribunal law. There is no change in military tribunal law whatsoever made in this bill. I am going to address the other misstatements that have been made by my friends and colleagues, but that was the most recent, so I just want to take on that one first.

In terms of constitutional provisions, the ultimate authority on the Constitution of the United States is the Supreme Court of the United States. Here is what they have said in the Hamdi case about the issue both of our friends have raised about American citizens being subject to the law of war.

A citizen--the Supreme Court said this in 2004--no less than an alien can be part of supporting forces hostile to the United States and engaged in armed conflict against the United States. Such a citizen-- referring to an American citizen--if released, would pose the same threat of returning to the front during the ongoing conflict. And here is the bottom line for the Supreme Court. If we just take this one line out of this whole debate, it would be a breath of fresh air to cut through some of the words that have been used here this morning--one line. ``There is no bar to this Nation's holding one of its own citizens as an enemy combatant.'' That is not me, that is not Senator Graham, and that is not Senator McCain. That is the Supreme Court of the United States recently. ``There is no bar to this Nation's holding one of its own citizens as an enemy combatant.''

I would rather not at this point.

There are a number of sections in this bill. My dear friend Senator Udall says ``these sections'' as though there are a whole bunch of sections that are at issue. There is really only one section that is at issue here, and that is section 1032, and that is the so-called mandatory detention section which has a waiver in it.

Section 1031 was written and approved by the administration. Section 1031, which my friend from Illinois has just said is an abomination, was written and approved by the administration. Now, section 1031 is the authority section. This authorizes. It doesn't mandate anything with the waiver; section 1032 does. Section 1031--and now I am going to use the words in the administration's own so-called SAP, or Statement of Administration Policy. This is what the administration says about section 1031: The authorities codified in this section already exist. So they don't think it is necessary--1031--but they don't object to it. Those are their words--the authorities in 1031 already exist. They do. What this does is incorporate already existing authorities from section 1031--unnecessary in the view of the administration, yes, but they helped write it and they approved it. We made changes in it.

We have made so many changes in this language to satisfy the administration, I think it all comes down to one section: 1032. Section 1032 is the issue, not all of the sections, by the way, that would be stricken by the Udall amendment. The Udall amendment would strike all the sections, but it really comes down to section 1032.

In 1032 is the so-called mandatory provision, which, by the way, does not apply to American citizens. I better say that again. Senator Graham said it, but let me say it again. The most controversial provision-- probably the only one in this bill--is section 1032. Section 1032 says: The requirement to detain a person in military custody under this section does not extend to the citizens of the United States. I guess that is the second thing I would like for colleagues to take away from what I say, is that section--and Senator Graham said the same thing. Section 1032--the mandatory section that has the waiver in it--does not, by its own words, apply to citizens of the United States. It has a waiver provision in it to make this flexible.

The way in which 1032 operates is it says that if it is determined that a person is a member of al-Qaida, then that person will be held in military detention. They are at war with us, folks. Al-Qaida is at war with us. They brought that war to our shores. This is not just a foreign war. They brought that war to our shores on 9/11. They are at war with us. The Supreme Court said--and I will read these words again--that there is no bar to this Nation holding one of its own citizens as an enemy combatant. They brought this war to us, and if it is determined that even an American citizen is a member of al-Qaida, then you can apply the law of war, according to the Supreme Court. That is not according to the Armed Services Committee, our bill, or any one of us; that is the Supreme Court speaking.

Who determines it? We say, to give the administration the flexibility that they want, the administration makes that determination. The procedures to make that determination--who writes those procedures? We don't write them. Explicitly, the executive branch writes those procedures. Can those procedures interfere with an ongoing interrogation or investigation? No. By our own language, it says they shall not interfere with interrogation or intelligence gathering. That is all in here. The only way this could interfere with an operation of the executive branch is if they themselves decided to interfere in their own operation. They are explicitly given the authority to write the procedures.

I think we ought to debate about what is in the bill, and what is in the bill is very different from what our colleagues who support the Udall amendment have described. Yes, we are at war, and, yes, we should codify how we handle detention, and this is an effort to do that. And as the administration itself says, we are not changing anything here in terms of section 1031. We are simply codifying existing law.

The issue really relates to 1032, and that is what we ought to debate.

Should somebody--when it has been determined by procedures adopted by the executive branch--who has been determined to be a member of an enemy force who has come to this Nation or is in this Nation to attack us as a member of a foreign enemy, should that person be treated according to the laws of war? The answer is yes. But should flexibility be in here so the administration can provide a waiver even in that case? Yes.

Finally, as far as civilian trials, I happen to agree with my friend from Illinois, and he is a dear friend of mine. Civilian trials work. There is nothing in this provision that says civilian trials won't be used even if it is determined that somebody is a member of al-Qaida. Not only doesn't it prevent civilian trials from being used, we explicitly provide that civilian trials are available in all cases. It is written right in here. I happen to like civilian trials a lot. I participated in a lot of them, and they are very appropriate, and we have a good record. In the case the Senator from Illinois mentioned, that case was a Michigan case. I know a lot about that case. It was the right way to go. I prefer civilian trials in many, many cases. This bill does not say we are going to be using military commissions in lieu of civilian trials. That is a decision we leave where it belongs--in the executive branch.

But we do one thing in this bill in section 1031 that needs to be said. We are at war with al-Qaida, and people determined to be part of al-Qaida should be treated as people who are at war with us. But even with that statement, we give the administration a waiver. That is how much flexibility we give to the executive branch.

Mr. President, how much time have I used?

I yield the floor.

Mr. President, how much time is remaining?

I yield 3 minutes to the Senator from Connecticut.

How much time is remaining, Mr. President?

He only needs 2 minutes.

Mr. President, let me also thank our friend from Colorado for his contributions to the committee. He is a valuable member of our committee, and he is no less valuable because he is offering an amendment with which I happen to disagree.

Two quick factual points. One is, the language the Senator mentioned from section 1033 is exactly the same language as was in last year's bill and is in current law. The only difference is we have given greater flexibility this year to the President by making it waiveable. So our language is more flexible than the current law.

Finally, in terms of the Hamdi case, the Senator is correct. I believe it was Senator Udall who said this was an American citizen who was captured in Afghanistan. That is true. But the Supreme Court, in Hamdi, relied on the Quirin case--which was an American citizen captured on Long Island and--quoted that case with approval when saying:

There is no bar to this Nation's holding one of its own

citizens as an enemy combatant.

That was the Quirin language--an American citizen captured on Long Island.

Mr. President, if I have any time left, I will yield it and yield the floor.

I wonder if Senator Udall also heard that. I believe, and I think it is the intention of all of us, that we vote on this as soon as possible after 2:15.

I yield the floor.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

I ask unanimous consent there be 2 minutes of debate, equally divided, prior to a vote in relation to the Udall of Colorado amendment No. 1107; that upon the use or yielding back of time, the Senate proceed to vote in relation to the amendment, with no amendments in order prior to the vote.

I yield 30 seconds to Senator Graham.

Mr. President, the Supreme Court has recently ruled--this is the Supreme Court talking:

There is no bar to this Nation's holding one of its own

citizens as an enemy combatant. A citizen, no less than an

alien, can be

part of the supporting forces hostile to the United States,

and such a citizen, if released, would pose the same threat

of returning to the front during the ongoing conflict.

That is the Supreme Court's statement. We can and must deal with an al-Qaida threat. We can do it properly. The administration helped to draft almost all of this bill. The provisions which would be struck----

Are provisions which even the administration has helped to draft. So I would hope we would deal with the al-Qaida threat in an appropriate way, in a bipartisan way. The committee voted overwhelmingly for this language.

I yield the remainder of my time.

Mr. President, I move to reconsider the vote.

Mr. President, if I could have Senator McCain's attention as well, what we are trying to do next is to move to two amendments, if we can. Both are next on the pending list. One is the Paul amendment No. 1064, repeal the authorization for use of military force against Iraq. The second one is not directly after his but follows after two Feinstein amendments. Senator Feinstein told me she could not be here early this afternoon. I told her if hers could be made part of a unanimous consent agreement, that could come later because this afternoon we have other things we can do. So the second amendment on this list is another nongermane amendment by Senator Landrieu, No. 1115, relative to small business research grants.

What we are trying to do is work out a unanimous consent agreement. There will be 60-vote thresholds on those two amendments. Neither one of them, I believe, is germane. As part of that agreement, we would also next move to approximately 40 cleared amendments which we would then ask be passed as cleared. That would all be part of a unanimous consent agreement we are currently drafting.

So I want to alert our colleagues----

I am sure she told me that would be OK. When we prepare our unanimous consent agreement, we will doublecheck that.

So that is where we stand. We hope in the next few minutes to be able to bring to the body a unanimous consent agreement. In the meantime, unless there is someone else who seeks recognition, I would note the absence of a quorum.

It is fine, if my colleague wishes to discuss amendments without attempting to offer any amendments.

I appreciate that. If I could ask my friend about how long he needs?

That sounds good.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, I was listening in the cloakroom to Senator Tester's comments about his amendment, and I wish to tell everyone how

right on point he is. I am focusing on overseas bases and the need to close some of those bases. We have another Defense bill coming up fairly soon, if we cannot get something done on this bill--and I hope we can--whether it is the sense of the Senate or otherwise to put our focus there, because we need to reduce our presence particularly in those bases, I believe, in Europe, where we simply no longer need those bases and cannot afford to maintain them. But whether we can get a commission done is a different issue because that could actually slow down the process, to appoint a BRAC-type commission.

I just wished to comment while he was still on the floor that I believe he is right. He is focused on that which is critically important for not just the Armed Services Committee but for this Senate to look at, which is to look at the huge number of overseas facilities we have and the fact that there are many we no longer need and we have to look there for some significant savings. I just wished to commend the Senator from Montana.

Mr. President, I now ask unanimous consent that the Levin- McCain amendment No. 1092, which is the regular order, be modified with the changes that are at the desk--that amendment addresses the issue of counterfeit parts in the Department of Defense supply chain; further, that the amendment, as modified, be agreed to; that upon disposition of the Levin-McCain amendment, the Senate resume consideration of the Paul amendment No. 1064; that there be 30 minutes of debate, equally divided in the usual form, on the Paul amendment; that upon the use or yielding back of time, the Senate resume consideration of the Landrieu amendment No. 1115; that there be up to 30 minutes of debate, equally divided in the usual form, on the Landrieu amendment; that upon the use or yielding back of time, the Senate proceed to votes in relation to the two amendments--the Paul and Landrieu amendments--in the following order: Paul amendment No. 1064 and Landrieu amendment No. 1115; that there be 2 minutes, equally divided, prior to each vote and there be no amendments in order to either amendment prior to the votes; and that both

amendments be subject to a 60-affirmative-vote threshold.

Mr. President, with the acceptance of this unanimous consent request, the Levin-McCain amendment, as modified, has now been agreed to; is that correct?

So now before us is the Paul amendment No. 1064, with 30 minutes of debate. I do not see Senator Paul in the Chamber.

I ask unanimous consent that Senator Baucus be added as a cosponsor to our Levin-McCain amendment No. 1092.

Mr. President, until Senator Paul gets here to begin debate on his amendment, I would, very briefly, describe what we have described before, which is the anticounterfeiting amendment, which is so important to stop the flow of counterfeit parts into the Department of Defense supply chain.

The amendment is going to do a number of things. It is going to require the Department of Defense and Department of Defense suppliers to purchase electronic parts from original equipment manufacturers and their authorized dealers or from trusted suppliers that meet established standards for detecting and avoiding counterfeit parts.

It establishes requirements for notification, inspection, testing, and authentication of electronic parts that are not available from such suppliers.

It requires Department of Defense officials and Department of Defense contractors that become aware of counterfeit parts in the supply chain to provide written notification to the DOD inspector general, the contracting officer, and the Government-Industry Data Exchange Program or similar program designated by the Secretary of Defense.

It requires enhanced inspection of electronic components imported from countries that have been the source of counterfeit parts in the DOD supply chain--China being the one that is clearly the worst offender in this regard.

It requires large DOD contractors to establish systems for detecting and avoiding counterfeit parts in their supply chains and authorizes reduction of contract payments to contractors that fail to develop adequate systems.

It requires the Department of Defense to adopt policies and procedures for detecting and avoiding counterfeit parts in its own direct purchases and for assessing and acting upon reports of counterfeit parts from DOD officials and DOD contractors.

It authorizes the suspension and debarment of contractors that repeatedly fail to detect and avoid counterfeit parts or otherwise fail to exercise due diligence in the detection and avoidance of counterfeit parts.

The amendment also includes a bill Senator Whitehouse introduced that was passed out of the Judiciary Committee to toughen criminal sentences for counterfeiting military goods or services.

Finally, it requires the Department of Defense to define the term ``counterfeit part,'' which is a critical, long overdue step toward getting a handle on this problem.

I wish to thank Senator McCain, who, with me, held a significant hearing in the area of counterfeit parts, demonstrating that what is going on is that electronic waste--which is shipped from the United States and the rest of the world, mainly to China--is then disassembled by hand, washed in dirty rivers, dried on city sidewalks, sanded down to remove part numbers and other marks that would indicate its quality or performance.

We have millions, literally, that we have identified of used parts that have gotten into the Defense supply chain that are not supposed to be used parts,

that are supposed to be new parts. It is amazing how far the counterfeiters--and particularly in China--are willing to go.

We have asked the U.S. Government Accountability Office, the GAO actually, to use a fake company to go online and buy electronic parts, and the GAO found suppliers that not only sold counterfeit parts--when the GAO sought legitimate parts--they found suppliers that were willing to sell them parts with nonexistent part numbers. All those sellers were in China.

We had example after example of weapons systems that had counterfeit parts in them. They endanger our troops. They endanger our taxpayers. All too often the people who pay for the replacement of counterfeit parts are the taxpayers instead of the contractors. That is going to end under our bill. So all the weapons we identified--lasers that were used for targeting Hellfire missiles; display units that were used in the Air Force's aircraft, the C-27Js, C-130Js, C-17s, CH-46s used by the Marine Corps--those counterfeit parts have gotten into those systems. We are going to put an end to this with this legislation.

I thank my good friend Senator McCain for all the work he and his staff and my staff put in on that hearing in preparing this amendment, which we have now adopted.

I wonder if the Senator from Kentucky would just yield for 30 seconds, not to be taken from his time, so I can answer a question that has been asked of me: What happened to the approximately 35 to 40 amendments which we had cleared? Why were they not part of this unanimous consent request?

The answer is because there are a few Senators, apparently, who do not object to the substance of the amendments but who have other goals they are, at the moment, insisting on. That puts in jeopardy the effort of literally dozens of our colleagues to achieve what is in these cleared amendments, and I hope those few Senators would relent.

Mr. President, I, too, will oppose the Paul amendment for the repeal of the authorization for the use of military force in Iraq for a number of reasons, but I think mainly there are just too many unknown, uncertain consequences of repealing this authority, including the need to protect our troops. I am unwilling to take this risk during the critical transition period and not knowing precisely what will happen after that transition either.

By the way, I take this position as someone who opposed the use of military force in Iraq to begin with. Back in October 2002 when Congress voted on the authorization to use military force in Iraq, I did not support it. I thought it was a mistake to do that and offered an alternative resolution that would have authorized the use of force if the United Nations Security Council supported that use of force. So I take a position here opposing the repeal of the authorization although I opposed the authorization itself in the first instance. It is an unusual position to be in. I want to explain why it is that I oppose the repeal of this authorization.

First, the drawdown appears to be on track to be completed by December 31, but there can always be unforeseen circumstances that could delay that date. There is no provision in this bill for the possibility of an extension or a modification of that date. I would be reluctant to see it modified or extended. I must say that I do not want to preclude the possibility by ending something in advance--ending an authorization in advance of circumstances arising that might require for days, weeks, months the extension or modification of the current decision to withdraw our forces by December 31.

Second, we simply do not know the consequences of repealing the authorization. Let me give a few examples. What about ongoing lawsuits in U.S. courts arising from actions by U.S. personnel that were authorized under this authorization for the use of military force? Would repeal of the authorization for the use of force have an effect? It is unknown to me. I don't know how many lawsuits there are. But what is the impact on this? That is something which surely we should want to know.

By the way, we authorized the use of force in the first gulf war. We did not repeal that authorization. Technically, that authorization continues. It has done no harm that I can see.

Third, the Paul amendment raises issues for our detention authority in Iraq. This is not an abstract concern. Currently, the administration is in the process of deciding how to deal with one high-value detainee in U.S. custody whose name is Ali Mussa Daqduq. He is suspected of having organized a 2007 kidnapping in Iraq that resulted in the deaths of five U.S. servicemembers. He is also tied to Hezbollah.

The United States is relying on the authority of the AUMF--the authorization for the use of military force in Iraq--to continue to detain Daqduq. U.S. officials are still in discussions with the Government of Iraq over the ultimate disposition of Daqduq, including possibly releasing him to U.S. custody either in Iraq or somewhere else.

Repeal of the AUMF could limit the administration's options for dealing with Daqduq after January of 2012. Would it limit those options? We don't know.

Should we pass something as dramatic as a repeal of an authorization at this time without knowing what the consequences are in the real world to our interests? I don't think we can

take that chance, so I would oppose the amendment of the Senator from Kentucky.

I yield the floor.

Mr. President, first, while Senator Landrieu is here-- because she, I know, is going to be interested in this and is right on top of this--I want to assure her it was our intention with the previous order to have the Landrieu amendment No. 1115 modified with the changes that are at the desk, and so I now ask unanimous consent that the amendment be modified with those changes, and that our previous order with respect to the vote in relation to the Landrieu amendment be modified as well.

Mr. President, while I have the floor, and while Senator Landrieu is here, let me add my voice of thanks and gratitude to Senator Landrieu for the energy she shows as chair of our Small Business Committee. I am honored to be a member of that committee and to sit at her side. I know how long and hard she has worked on this SBIR Program, how many years we have fought hard for this program, with her as our leader.

The same thing is true with the technology program--the Small Business Technology Transfer Program--which is part of this amendment. This bill is going to help 30 million small businesses to invest in technology research to help grow their businesses, spur innovation, and create jobs. Small business technology firms that receive SBIR funds have produced 38 percent of America's patents--13 times more than large businesses--and employ 40 percent of America's scientists and engineers, and the Defense Department is the biggest user of these programs. So this is very appropriate on this bill, and we are very grateful for the determination of Senator Landrieu and her cosponsors.

If I am not already a cosponsor of the amendment, I would ask unanimous consent to be added as a cosponsor.

Mr. President, this has made it possible for us to be here tonight, and I wanted to say that while Senator Landrieu was on the floor and to express what I think is, if not the unanimous, certainly the near unanimous gratitude of this body, because I expect this will have an overwhelming vote.

By the way, Mr. President, I ask unanimous consent also that our Presiding Officer, Senator Casey, be added as a cosponsor to our counterfeit parts amendment, No. 1092. It took us too many weeks to do this, but as I see the Presiding Officer in the chair, I am making up for lost time and asking unanimous consent that he be added as a cosponsor.

I yield the floor.

Amendment No. 1064

Mr. President, reserving the right to object, and I won't, I have two unanimous consent requests that will take just a couple of moments.

Mr. President, I call for the regular order with respect to amendment No. 1174.

Secondly, there are two colloquies between myself and Senator Sherrod Brown. At the end of these colloquies, in both cases, Senator Brown withdraws the amendments referred to in the colloquies, amendments Nos. 1260 and 1262.

So I ask unanimous consent that those two amendments he then withdraws at the end of the colloquies in fact be withdrawn.

I am aware of the concerns raised by the Senator from Ohio, and I assure him that I will give careful consideration to those concerns as

we go to conference with the House of Representatives on this provision.

I am aware of the issue, and of the concerns raised by the Senator from Ohio about this definition. Section 823 of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 directed the Secretary of Defense to review the definition of the term ``produced'' and to ensure that it complies with the requirements of law and is consistent with congressional intent.

It is my understanding that this review is currently ongoing. I believe that we should have the informed input of the Department of Defense before we act on this issue. For that reason, I believe that the amendment is premature. However, the review required by section 823 is already several weeks overdue. I understand that DOD is not always able to meet our reporting deadlines, but this is an issue on which we need DOD's input and we need it soon. I assure the Senator from Ohio that we will carefully review the findings of the DOD review and revisit the issue in light of those findings, if necessary. If the Department fails to meet its statutory duty to address this issue, we will take that into consideration as well.

I thank my friend from Iowa.

Mr. President, I ask unanimous consent that the Committee on Foreign Relations be authorized to meet during the session of the Senate on November 29, 2011, at 2:15 p.m.

Mr. President, I ask unanimous consent that the Select Committee on Intelligence be authorized to meet during the session of the Senate on November 29, 2011, at 2:30 p.m.

Mr. President, I ask unanimous consent that the legislative fellow in the office of Senator Baucus, Air Force MAJ Jason Wright, be granted floor privileges for the duration of the debate on this bill, S. 1867.

Mr. President, I see that Senator Webb is on the floor. I know he is going to be making some remarks in a few moments. I would urge other colleagues of ours to do the same. We are in a period now where debate is in order on any of the amendments, whether they are pending or not pending or whether they have been filed and not been made pending. This is an opportunity which is going to end, hopefully, on Wednesday morning when we vote cloture.

We must get this bill passed. It is critically important to our men and women in uniform. They deserve to have a defense authorization bill passed. So I would urge colleagues who have amendments they have filed to come to the floor this afternoon to debate their amendments.

I yield the floor.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, here is where we are: With the current UC that we are operating under, debate is in order this afternoon, and we are urging that our colleagues who have amendments pending to come and debate those amendments. This is an opportunity for them to do so, and this opportunity is not going to last for very long because we have to get this bill passed.

So I would urge--and I know my good friend from Arizona would join me--colleagues who have amendments, whether they are pending or not, we are not going to be able to have any additional amendments added to the pending list by unanimous consent because we already have something like 100 pending amendments. It is just more than we are going to be able to handle to add any more, and it may be more than we could handle to deal with the ones that are already pending.

But I urge colleagues--otherwise, tomorrow we are going to be hearing from colleagues: Gee whiz, we want to offer our amendment or we want to debate that amendment, and there won't be time before that cloture vote on Wednesday--we are not going to have more than this week for this bill. We have been informed by the majority leader he wants to finish this bill by Thursday.

So I strongly urge our colleagues to come and use this opportunity to debate their amendments. It will increase the chances that we will be able to get to their amendments for a vote.

I surely concur with my colleague that we have been here now--I think this is the fourth day. The days last week which the Senator referred to are different than my own memory. I think they were earlier in the week than the Senator referred to. But, nonetheless, the point is the same. I believe we were here either Tuesday or Wednesday, but there were 2 days before we left for Thanksgiving that we were here. The Senator's point is well taken.

The floor was open to debate. People offered amendments. They had an opportunity to make them pending. Now we have a huge number of those amendments pending, and now it is time to start disposing of amendments. Unless our colleagues come to the floor to do that, we are not going to be able to get through this bill, and the leader will not continue debate or allow us to continue to debate this bill beyond Thursday. We know that is the case because we know how much pending legislation there is that the majority leader needs to get through.

So I can only, again, join the Senator from Arizona in a joint plea that our colleagues who have amendments come and debate those amendments. Hopefully, we can get to votes on those amendments even yet today after the vote on the judge at 5:30 or so.

I hope, when the time comes, colleagues who come to the floor understand that unless they agree to short time agreements, there is no way we will be able to get this bill done even if their amendments pass. It will not do anyone any good to have long debate on amendments when people finally come to debate those amendments, even if the amendments pass, because there will not be an opportunity to get the bill itself passed. That is very true.

Mr. President, before the Senator from Maine leaves the floor, I wish to thank her for the extraordinary contribution she makes to our committee as well as to the Senate. She and I have worked long together, and we work extremely well together. We have seen a lot of things that were able to get passed because of people working together--a lot of measures that can happen because people are willing to set aside partisanship--and she has been one of the leaders in getting things done in this body and in the committee. I wish to thank her and tell her how grateful a chairman I am for her contribution.

We are working hard on the amendments she has offered. They are being worked on--last week and this week--and we will have something to report to her, I hope, in the next few hours.

Mr. President, if I may add one thing; that is, she has also been my chairman, as well as the ranking member, on the Homeland Security Committee. So we have an awful lot of history together. I am glad she did not mention how many years it is we have been working together because that dates us a little bit. But we do go back a long way and have tremendous confidence in each other, as I do in her.

I thank the Chair.

I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, pursuant to that unanimous consent order that was just entered, I now would call up the Menendez-Kirk amendment No. 1414.

Mr. President, that amendment now I guess would return to the position that it has under the unanimous consent agreement that was just entered; is that correct?

What is the regular order now that we are going back to it?

And that is the Levin-McCain amendment?

I ask unanimous consent that we proceed immediately to the Leahy-Graham amendment on the National Guard.

Mr. President, I move to reconsider the vote.

Mr. President, we now have an understanding with Senator Udall that he would be recognized first tomorrow morning to call up amendment No. 1107.

I ask unanimous consent that when we come in tomorrow morning, Senator Udall be recognized after the leaders are recognized to call up that amendment.

That is my understanding.

We will leave that issue for the closing statement, that he be recognized. First, I agree with the Senator from Arizona that we agree there be a half hour equally divided on the amendment. But let's leave the exact wording on that for the closing.

I suggest the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

I ask unanimous consent that the Senate proceed to a period of morning business with Senators permitted to speak for up to 10 minutes each.

Mr. President, I wish to speak to mark the passing of Frederik Meijer, one of Michigan's most distinguished leaders in business and philanthropy. Barbara and I were saddened to learn of his passing on Friday at the age of 91. It is by no means an overstatement to say that Fred Meijer changed the face of our State, and the legacy he leaves will continue to affect us in Michigan and America and beyond for decades hence.

Most Michiganians know him best through the business he built, one of the largest family owned companies in the Nation. Fred grew up working long hours in the Greenville, MI, grocery store that his father, an immigrant from Holland, opened in 1934. Over the next three decades the business grew until, in 1962, Fred and his father expanded from groceries into general merchandise. They called their new store ``Thrifty Acres,'' and it led the way to the supercenter retail stores that are now so much a part of the American consumer's daily experience. Today, Grand Rapids-based Meijer, Inc. has more than 200 stores across the Midwest, and the company is a major part of the West Michigan economy.

But Fred Meijer was not content to be just a pioneering entrepreneur. As the company grew, so did his lifelong drive to make the world around him a better place. He was an early and eager supporter of the civil rights movement. He was deeply involved in efforts by the Urban League to promote education and equal opportunity.

One of his many lasting legacies is the Frederik Meijer Gardens & Sculpture Foundation. Established in 1993, the foundation embodies Fred's commitment to ensuring that art and beauty are available to everyone. The park and gardens that the foundation supports house his collection of sculpture, one of the finest collections anywhere in the world, and places it in surroundings of incredible natural beauty.

Beyond the foundation, over the years he made generous gifts to support recreation and conservation efforts, schools and colleges and dozens of other institutions and charitable efforts across the State. There are few residents of our State who have not been touched in some way by his generosity. I have seen firsthand that generous and independent spirit, and I shall personally miss him, and personally feel the gap his passing has left in our State.

Barbara and I send our condolences to his wife Lena, his partner in life and business and philanthropy; their sons Hank, Doug and Mark; their seven grandchildren; and the multitude of those who will miss Fred's immense presence. He will indeed be missed. What a man. What a life. What a force for good in the world.

Mr. President, I ask unanimous consent that Joel Garrison, a legislative fellow in Senator Wyden's office, be granted floor privileges during the consideration of S. 1867.

I understand that S. 1917, which was introduced earlier today by Senator Casey, is at the desk, and I ask for its first reading.

I ask for its second reading and object to my own request.

Mr. President, I ask unanimous consent that when the Senate completes its business today, it adjourn until 10 a.m. on Tuesday, November 29, 2011; that following the prayer and pledge, the Journal of proceedings be approved to date, the morning hour be deemed expired, and the time for the two leaders be reserved until later in the day; that following any leader remarks, the Senate be in a period of morning business for 1 hour with Senators permitted to speak therein for up to 10 minutes each, with the time equally divided and controlled between the two leaders or their designees, with the majority controlling the first half and the Republicans controlling the final half; and that following morning business, the Senate resume consideration of S. 1867, the Department of Defense Authorization Act, with Senator Udall of Colorado being recognized, as provided under the previous order; further, that the Senate recess from 12:30 p.m. until 2:15 p.m. to allow for the weekly caucus meetings; finally, that the first-degree filing deadline for S. 1867 be at 2:30 p.m. on Tuesday.

Mr. President, Senators should expect rollcall votes throughout the day tomorrow in relation to amendments to the Defense authorization bill.

Mr. President, if there is no further business to come before the Senate, I ask unanimous consent that it adjourn under the previous order.

Mr. President, the pending business is S. 1867, the Defense Authorization Act; is that correct?

Mr. President, Senators are encouraged to come to the floor to offer their amendments this morning. We are going to be here doing business. Senators who have remarks, speeches, proponents of the amendments, opponents of amendments are given an opportunity here today which may be one of the relatively few opportunities that are going to be available.

We will be here the Monday after we return as well before the vote at 5:30 on Monday, November 28, on a judicial nomination, but we will also be here before that time to hear from proponents and opponents of amendments and to have people offer amendments. We are not going to have the whole week, we have been told by the leader, when we come back for this bill, so we are going to have to make additional progress today. We made some progress last night. We cleared some amendments last night. We are going to try to clear some additional amendments this morning and adopt some amendments that can be cleared. We have 155 filed amendments, and we have 31 pending amendments. Again, we are going to try to clear some of those today and adopt some of those today, and we are going to try to do the same on Monday when we return.

Again, I urge that Senators who want to speak on pending or filed amendments, proponents of those amendments, opponents of those amendments, let us know immediately, if you would, whether you wish to speak in support of or in opposition to pending or filed amendments. Obviously, if people want to oppose amendments, then we are not going to clear them if we know about that, but we have to know about that. These are on file. The clerk has the amendments. We know which amendments are pending. The list is available.

The staff is going to be here for the first couple days, at least, next week prior to Thanksgiving. Our staffs will be here to work with staffs of Senators to try to revise amendments that may be open to revision. So that work is going to go on, and we have to use these time periods--today and next Monday and Tuesday--for work on amendments and the Monday we get back for work on amendments because we need to get this bill passed.

This is a critically important bill, and with 155 filed amendments, 31 of which are already pending, we have a lot of work to do. We are going to try to do the very best we can, but we have to get a bill passed and we have to debate some of the very significant amendments which have already been filed and are pending.

So I want to thank my friend from Arizona and see whether he might want to comment on my comments or otherwise.

Mr. President, first of all, I thank my friend and colleague from Arizona, the ranking member, for his comments and for all of his work on the committee. All of our colleagues on the committee have put in a lot of time.

I want to emphasize something he said about the opportunity here for debate--that we have a number of pending amendments, including the amendments on detainees. We are here to hear debate on those or any other amendments today and on Monday. We were here yesterday and had a long debate. As the Senator from Arizona said, we had a lengthy debate, and we were prepared to vote. The supporters were not. That is fair enough. If they want additional time to debate it, we should welcome that. But there is time, there is time today and there is time on Monday when we get back to debate that amendment and those amendments not only on the detainees but on many other issues that are important that are in this bill.

I agree with my friend from Arizona that we should ask the majority leader to make Monday night available for votes after the scheduled vote at 5:30. We need to have votes on amendments. I would hope that amendments that can't be agreed to will be voted on on Monday night after the vote on the judge, which is scheduled for 5:30.

I also agree with the Senator from Arizona about trying to get a limit on the number of amendments. We will try again today to see if we can get a

unanimous consent agreement. I haven't had a chance to talk this morning with the Senator from Arizona, but we will try--and he just has given me an indication that this is fine with him--to see if we can't set a time later on today, maybe at noon or 1:00, for the filing of amendments and to limit amendments to those that are filed by that time.

We are going to try to get that done with a safety valve, which I suggested last night and I think is acceptable to the Republican manager, my friend from Arizona, which is that, in addition to whatever amendments are filed by whatever time we put in the unanimous consent proposal, there be an additional two amendments on each side that would be available to the managers that would need to be relevant--just relevant amendments--to an amendment that is filed or relevant to the bill. I think you would need a safety valve, and people would understand that. Those two amendments would be allocable--two amendments each by the Republican manager and myself, if that is agreeable. It would take unanimous consent, but I think everyone realizes we have to have a universe here that we can work with during the next week.

Mr. President, I will be done in one moment so that our friend from New Mexico can schedule his presentation.

I just wanted to add one additional thing to what the Senator from Arizona said, in addition to agreeing with him. We will be here today and we will be here a week from Monday so that there will be plenty of opportunity to debate these pending amendments or other amendments, and people need to know we are going to be seeking votes on these pending amendments if we can't clear them or work them out. There will be an opportunity for debate before the vote.

One other comment; that is, I will have a detailed statement addressing the detainee issue a little later on this morning. It will address some of the statements that are incorrect and misleading which were in the administration's statement on this subject. Also, some of the statements of our colleagues need to be addressed and, I believe, corrected. Because this is a complex issue it is important to know what is in the bill and what is not in the bill. If it is properly characterized and if it is properly stated, it is still complex, but to misstate it or overstate it or to mischaracterize what is in our bill just confuses an issue which needs to be debated on its merits and not confused. It is complicated enough without obfuscation and confusion about what is in the bill on detention or other matters and what is not in the bill.

I yield the floor.

Let me notify Senators on our side that we are more than willing to do that same courtesy for them if they would let our staff know at the cloakroom this morning. We can do the same thing for Senators on our side as the Senator from Arizona properly did for Senators on his side.

And if I may, doing what the Senator from Arizona just did will also facilitate, hopefully, the acceptance of a unanimous consent request that there then be a cutoff as I described at perhaps noon or 1 o'clock today so we can know what the universe is and begin to whittle it down.

I yield the floor.

I thank the Senator from New Mexico for his remarks. I agree with him; it was a lively debate. I also agree with him it is to be desired that kind of debate occurs more often in the Senate. The Senator from New Mexico has been very active in the effort to have these kinds of debates by rules changes, which would make these kinds of debates a lot more likely, and by other mechanisms.

To make an inquiry, did the Senator from New Mexico restore the regular order to the Levin-McCain amendment? I missed that.

Mr. President, I thank the Senator from New Mexico again for the comments, but also tell him how very much impressed I have been right from the first day I heard him with his openmindedness on subjects. It is very important that we keep open minds, and he has shown just how to do that. We appreciate that on an issue this complex, particularly on the Defense bill.

I suggest the absence of a quorum.

Mr. President, first, let me thank the Senator from Rhode Island, my dear friend, for all the work he does on our committee and the other work he does for the Senate. He is an invaluable member of our Armed

Services Committee, and I just want to not let this moment pass without acknowledging that.

I yield the floor.

Mr. President, I ask unanimous consent that the pending amendments be temporarily set aside to call up, on behalf of Senator Bingaman, amendment No. 1117; and on behalf of Senator Gillibrand, amendments Nos. 1187 and 1211.

Before the clerk reports, I also ask unanimous consent that Senator Gillibrand be added as a cosponsor of amendment No. 1092, the Levin- McCain counterfeit parts amendment.

Mr. President, I ask for the regular order on the Levin- McCain amendment.

Mr. President, I note the absence of a quorum.

Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. President, in a short while I hope we will have, and expect that we will have, some amendments that have been cleared on both sides that we are going to be able to offer and hopefully adopt.

What I thought I would do now is make a fairly lengthy statement about statements which have been made relative to the detainee provisions in S. 1867. First, I want to comment on the statements that were made in the Statement of Administration Policy--this is a so- called SAP. So when I refer to SAP during these comments, and I use that term, it is the acronym which means Statement of Administration Policy.

I am going to first quote exactly from the SAP, and then I am going to

comment and show why these statements I am referring to are inaccurate. From the SAP:

Section 1031 attempts to expressly codify the detention

authority that exists under the authorization for Use of

Military Force.

The authorization for use of military force is referred to as the AUMF. The quote continues:

The authorities granted by the AUMF, including the

detention authority, are essential to our ability to protect

the American people from the threat posed by al-Qaida and its

associated forces, and have enabled us to confront the full

range of threats this country faces from those organizations

and individuals.

Well, Mr. President, given how important the administration says these authorities are, it should be helpful to have them codified so they can stand on the strongest possible footing.

The next quote:

Because the authorities codified in this section [1031]

already exist, the administration does not believe

codification is necessary and poses some risk.

The quote continues:

After a decade of settled jurisprudence on detention

authority, Congress must be careful not to open a whole new

series of legal questions that will distract from our efforts

to protect the country.

The quote continues:

While the current language minimizes many of those risks,

future legislative action must ensure that the codification

in statute of express military detention authority does not

carry unintended consequences that could compromise our

ability to protect the American people.

Well, Mr. President, section 1031 was written by administration officials for the purpose of codifying existing authority. The description of persons covered is identical to the position taken by the administration and upheld in the courts. The provision specifically provides that nothing in the provision either limits or expands the authority of the President or the scope of the AUMF.

It is also worth noting that the SAP does not support the argument made by some Senators that section 1031 creates a new or unprecedented authority. On the contrary, the Statement of Administration Policy, the SAP, acknowledges the provision codifies existing law.

Now, this is hardly surprising since the committee accepted all of the administration's proposed changes to section 1031.

I am continuing to quote from the Statement of Administration Policy:

The administration strongly objects to the military custody

provision of section 1032, which would appear to mandate

military custody for a certain class of terrorism suspects.

This unnecessary, untested and legally controversial

restriction of the President's authority to defend the Nation

from terrorist threats would tie the hands of our

intelligence and law enforcement professionals.

Well, Mr. President, it is interesting that the SAP states the amendment would ``appear to'' mandate military custody. In fact, it does not mandate military custody and does not tie the administration's hands because it includes a national security waiver which allows suspects to be held in civilian custody.

Next quote:

Moreover, applying this military custody requirement to

individuals inside the United States, as some Members of

Congress have suggested is their intention, would raise

serious and unsettled legal questions and would be

inconsistent with the fundamental American principle that our

military does not patrol our streets.

Well, the administration itself asked that we delete limitations in section 1031 on the applicability of detention authority inside the United States that would have excluded U.S. citizens and lawful residents based on conduct taking place inside the United States to the extent authorized by the Constitution. The exact words were ``except to the extent authorized by the Constitution.''

If it is appropriate to authorize military detention inside the United States under section 1031, it is not at all clear what ``serious and unsettled legal questions'' in this narrow category of cases could be raised by requiring such detention subject to a national security waiver. Further, nothing in section 1032 would require or even permit our military to ``patrol our streets.''

Section 1032 applies, by its very term, only to a person ``who has been captured in the course of hostilities'' authorized by the AUMF. The provision has no applicability to a person who has not already been so captured and does not speak to the question of when or where such a capture might be authorized.

The provision does not give the military authority to make arrests or conduct any law enforcement functions inside the United States.

Next quote:

We have spent ten years since September 11, 2001, breaking

down the walls between intelligence, military, and law

enforcement professionals; Congress should not now rebuild

those walls and unnecessarily make the job of preventing

terrorist attacks more difficult.

In answer to that, it is not clear what walls the administration thinks the provision builds. Nothing in this provision limits the participation of law enforcement or intelligence professionals in the interrogation of detainees in military custody or vice versa or the sharing of information.

Next quote:

Specifically, the provision would limit the flexibility of

our national security professionals to choose, based on the

evidence and the facts and the circumstances of each case,

which tool for incapacitating dangerous terrorists best

serves our national security interests.

The provision does not limit the flexibility of the executive branch to choose the appropriate tool for taking on terrorists. On the contrary, the provision expressly directs the President to establish procedures for making determinations of coverage, authorizes the executive branch waiver of military detention requirements where they do apply, and expressly authorizes the transfer of any detainee to civilian custody for trial.

The next quote from the SAP:

The waiver provision fails to address these concerns,

particularly in time-sensitive operations in which law

enforcement personnel have traditionally played the leading

role.

It is not clear why the administration thinks the use of a waiver would be problematic in time-sensitive operations. The need for a waiver is not triggered until the executive branch determines an individual is covered. The President has control over who makes these determinations, how they are made, and when they are made, so the executive branch should not be faced by a determination of coverage for which it is not ready. And even if, for some reason, executive branch officials were not ready to deal with their own determination, the provision specifically provides that a determination of coverage may not be used to interrupt ongoing surveillance, intelligence gathering, or interrogation sessions.

The next quote from the SAP:

These problems are all the more acute because the section

defines the category of individuals who would be subject to

mandatory military custody by substituting new and untested

legislative criteria for the criteria that the Executive and

Judicial Branches are currently using for detention under

AUMF in both habeas litigation and military operations. Such

confusion threatens our ability to act swiftly and decisively

to capture, detain, and interrogate terrorism suspects, and

could disrupt the collection of vital intelligence about

threats to the American people.

The SAP is wrong. Detention under section 1032 is expressly limited to persons for whom detention is authorized under criteria currently used by the executive branch and the courts. The new and untested legislative criteria about which the SAP expresses concern is language narrowing the application of the provision to a small category of those for whom detention is already authorized.

Also, because the provision addresses only the question of whether an individual should be transferred to military custody after capture, it is not clear how it could possibly threaten the ability of executive branch officials to act swiftly and decisively to capture anybody.

Because the provision expressly states it may not be applied to interfere with an ongoing surveillance, intelligence gathering, and interrogations, it is not clear how it could possibly threaten the ability of executive branch officials to interrogate terrorism suspects or disrupt the collection of vital intelligence about threats to the American people.

The next quote from the SAP:

Rather than fix the fundamental defects of section 1032 or

remove it entirely, as the administration and the chairs of

several congressional committees with jurisdiction over

these matters have advocated, the revised text merely directs

the President to develop procedures to ensure the myriad

problems that would result from such a requirement do not

come to fruition.

The administration reviewed the language directing the President to develop procedures and they made several suggestions for improvements to that language. The committee adopted all of the administration's suggestions. The remaining change suggested by the administration, which the committee did not adopt, was a proposal to limit the application of the provision to persons captured abroad. This difference does not constitute a myriad of problems which are complex or hard to understand.

This is the last comment they make on that section:

Requiring the President to devise such procedures concedes

the substantial risks created by mandating military custody,

without providing an adequate solution. As a result, it is

likely that implementing such procedures would inject

significant confusion into counterterrorism operations.

The language referred to was included to address concerns expressed by the administration. That does not in any way constitute an acknowledgment that the concerns were valid. Whether these concerns were valid or not, they have now been resolved by specific language in the revised provision.

Continuing:

The certification and waiver, required by section 1033

before a detainee may be transferred from Guantanamo Bay to a

foreign country, continue to hinder the Executive Branch's

ability to exercise its military, national security, and

foreign relations activities. While these provisions may be

intended to be somewhat less restrictive than the analogous

provisions in current law, they continue to pose unnecessary

obstacles, effectively blocking transfers that would advance

our national security interests, and would, in certain

circumstances, violate constitutional separation of powers

principles. The Executive Branch must have the flexibility to

act swiftly in conducting negotiations with foreign countries

regarding the circumstances of detainee transfers.

The provision is not only ``intended to be somewhat less restrictive'' than provisions that are included in previous authorization and appropriations acts signed by the President, it is less restrictive. Unlike last year's bill, this provision includes a waiver, which allows the administration to proceed with a transfer even if the certification requirements cannot be met.

Congress has expressed strong concerns about recidivism among Gitmo detainees who have been released in the past. It cannot be in our national security interests to ``act swiftly'' if we fail to provide adequate safeguards against terrorists rejoining the fight against us.

In discussions on this issue, administration officials have made a single priority request--that the provision be made a 1-year limitation instead of a permanent limitation. And the committee agreed to that change.

Section 1034's ban--

And I am now continuing the quote from SAP--

on the use of funds to construct or modify a detention

facility in the United States is an unwise intrusion on the

military's ability to transfer its detainees as operational

needs dictate.

This provision is the same as the provisions included in last year's authorization and appropriations acts which were signed by the President. In discussions on this issue, administration officials made a single priority request--that the provision be made a 1-year limitation instead of a permanent limitation. The committee agreed to that change.

The next quote from the SAP:

Section 1035 conflicts with the consensus-based interagency

approach to detainee reviews required under Executive Order

No. 13567, which establishes procedures to ensure that

periodic review decisions are informed by the most

comprehensive information and considered views of all

relevant agencies.

Section 1035 does not conflict with the Executive order of the interagency review process established in the Executive order; rather, it requires the issuance of procedures to implement the review process required by the Executive order.

The Executive order states that a Gitmo detainee will not be released if the interagency process results in a unanimous recommendation against release. The Executive order states that a Gitmo detainee will be released if the interagency process results in a unanimous recommendation for release. But it is silent as to what happens if the process does not result in a unanimous recommendation.

The provision in the bill addresses that issue by providing that no Gitmo detainee will be released without the consent of the Secretary of Defense. This does not contradict the Executive order; it is a truism, since nobody can be released without agreement of all of the agencies.

In discussions with the committee, administration officials did not even raise this provision as a priority issue.

Finally, on the Statement of Administration Policy, the SAP:

Section 1036, in addition to imposing onerous requirements,

conflicts with procedures for detainee reviews in the field

that have been developed based on many years of experience by

military officers and the Department of Defense.

The only new requirement imposed by section 1036 is the requirement for a military judge and legal representation for any detainee who will be held in long-term custody. In discussions with the committee, the administration did not object to this new requirement. On the contrary, the only change requested by the administration in this provision was to strike the words ``long-term.'' The committee did not agree to this proposed change because it would have been onerous to impose this requirement in the case of all detainees, including those who are captured and released or held on a short-term basis.

Mr. President, I now would like to move to my comments on some of the statements of the senior Senator from California. The first comment of Senator Feinstein that I wish to address is the one where she said: ``Section 1031 needs to be reviewed to consider whether it is consistent with the September 18, 2001, authorization for use of military force.''

On this one, the committee accepted all of the administration's language changes which were written to ensure that the provision is consistent with the AUMF. The provision specifically states it does not ``limit or expand the authority of the President on the scope of the AUMF.'' The SAP on the provision states that ``the authorities codified in this section already exist'' under the AUMF.

The next quote from the Senator from California is the following. Section 1031:

. . . would authorize the indefinite detention of American

citizens without charge or trial. Do we want to go home and

tell the people of America that we're going to hold them if

such a situation comes up without any review, without any

habeas?

The committee accepted all of the administration's proposed changes to section 1031, and as the administration has acknowledged, the provision does nothing more than codify existing law. Indeed, as revised pursuant to administration recommendations, the provision expressly ``affirms'' an authority that already exists. The Supreme Court held in the Hamdi case that existing law authorizes the detention of American citizens under the law of war in the limited circumstances spelled out here, so this is nothing new.

The initial bill reported by the committee included language expressly precluding ``the detention of citizens or lawful resident aliens of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States.''

The administration asked that this language be removed from the bill. Mr. President, 1031 does not refer to habeas and in no way limits habeas, nor could it. No American can be held in military detention without habeas review and no non-American can be held in military detention inside the United States without habeas. For non-Americans outside the United States, the bill requires the administration to establish review procedures, including, for the first time, a military judge and access to a military lawyer for the status determination.

The next quote of the Senator from California is the following. Under Section 1032:

. . . any noncitizen al-Qaida operative captured in the

United States would be automatically turned over to military

custody. Military custody for captured terrorists may make

sense in some cases, but certainly not all.

Mr. President, Section 1032 does not mandate military custody. It does not

tie the administration's hands because--and this is critically important--it includes a national security waiver which explicitly allows any suspect to be held in civilian custody. Nothing is automatic. The administration would have the discretion to waive military detention and hold a detainee in civilian custody if it decided to do so.

The next quote in the case of Najibullah Zazi:

If the mandatory military custody in the armed service bill

was law--

The committee bill was law--

all of the surveillance activities, all of what the FBI did

would have to be transferred immediately to the military. . .

. Then the government would have been forced to split up co-

defendants, even in cases where they otherwise could be

prosecuted as part of the same conspiracy.

Zazi was a permanent legal resident. His co-conspirators

were both U.S. citizens. They would be prosecuted on

terrorist charges in Federal criminal court, but Zazi himself

would be transferred to military custody. Two different

detention and prosecution systems would play out and could

well complicate a unified prosecution.

It is not accurate to say everything the FBI did in the Zazi case would have had to be ``transferred immediately to the military.'' First, it is not at all clear Zazi was covered by the provision because we don't know that he was al-Qaida, and in any event there is an exclusion because he is a lawful resident alien of the United States.

Second, until a coverage determination was made, no transfer would be required and the President would decide how and when that determination would be made.

Finally, even if Zazi were somehow determined to be covered, the requirement could have been waived and Zazi could have been kept in civilian custody in the discretion of the executive branch.

Also, as to this statement that the executive branch would be forced to split up codefendants in the Zazi case, even if he was covered by the provision or in any other case, that is because the provision includes a waiver that would have allowed him to be held in civilian custody from the outset if the executive branch officials decided to do so and also because the provision expressly authorizes the transfer of any military detainee to civilian custody for trial in the Federal courts even without a waiver. So executive branch officials are always able to consolidate cases should they decide to do so in the Federal courts.

The next statement which the Senator made was the following:

The Department of Justice has said that approximately one-

third of terrorists charged in Federal court in 2010 would be

subject to mandatory military detention, absent a waiver from

the Secretary of Defense.

Taking the Justice Department at its word, there have been approximately 300 terrorist cases in Federal court over the last 10 years or about 30 a year. One-third of that number would be just 10 cases a year in which the executive branch officials would have to make determinations of coverage and, if necessary, exercise their waiver authority.

Even that number appears to be exaggerated. Cases of attempted al- Qaida attacks on American soil have been highly publicized and receive extensive scrutiny, understandably, in Congress. We are not aware of more than half a dozen cases, total, over the last decade. The reason the debate on this issue always seems to come back to the same handful of cases appears to be there only are a handful of cases that are covered by this provision potentially.

In her next quote:

The administration contends that the mandatory military

custody is unwise because our allies will not extradite

terror suspects to the United States for interrogation and

prosecution or even provide evidence about suspected

terrorists if they will be sent to a military brig or

Guantanamo.

This provision expressly states that the waiver authority may be used to address these concerns and to assure an ally that a suspect will not be held in military custody if transferred to the United States and if that assurance is necessary to obtain that transfer. Administration officials suggested a wording change to preclude misinterpretation of this provision and the committee adopted the very wording proposed by the administration.

The next quote of the Senator from California is that Section 1033:

. . . essentially establishes a de facto ban on transfers of

detainees out of Guantanamo, even for the purpose of

prosecution in United States courts or in other countries.

There is no limitation at all in the bill on the transfer of Gitmo detainees to the United States for trial or for any other purpose. With regard to the transfer to other countries, Section 1033 is less restrictive than current law, which was signed by the President.

The next quote I would address is the following. Section 1033:

. . . requires the Secretary of Defense to make a series of

certifications that are unreasonable and candidly unknowable

before any detainee is transferred out of Guantanamo. Again,

an example, the administration proposed eliminating the

requirement that the Secretary of Defense certified that the

foreign country from whence the detainee will be sent to is

not quote `facing a threat that is likely to substantially

affect its ability to exercise its control over the

individual.'

The same language was included in last year's authorization and appropriations bills that were signed by the President. We added a waiver provision this year to make it easier to transfer detainees. In discussion with the committee, the administration made a single priority request on this issue; that the provision be made a 1-year limitation instead of a permanent limitation, and the committee agreed to that change.

Finally, the last quote of the Senator from California from yesterday that I am going to address is the following:

In March, the President issued an executive order that laid

out the process for reviewing each detainee's case to make

sure that indefinite detention continues to be an appropriate

and preferred course. Section 1035 essentially reverses the

interagency process created by the President's order.

This was the same allegation made by the statement of administration policy. It is erroneous, and I addressed the answer to that allegation in my remarks a little earlier today, relative to the statement of administration policy, the SAP, so I am not going to comment further. But I would direct everyone back to those comments on the statement of administration policy similar to that statement of the Senator from California, which I addressed at that time.

I appreciate the patience of our Presiding Officer. This was a long statement, but I think it is essential we understand there are issues that need to be debated and should be debated, but there is nothing but confusion created on an issue that is already complex when misstatements are made about what is in a bill of the committee and what is not in the bill of a committee.

The words in the committee bill are words that are clear. They need to be debated, but they should not be exaggerated or misinterpreted. This is an important debate. We had a good debate yesterday, and I expect we will complete this debate on Monday so we can vote on these detention provisions and amendments relative thereto of Senator Udall hopefully on Monday night.

I yield the floor.

Amendment No. 1087

Mr. President, let me thank the Senator from Oregon. We are happy to work with him. He is very deeply into these and so many other issues. His contribution is well known to all of us in the Senate. We are happy to work with him on these matters.

Mr. President, before the Chair recognizes our friend from Alabama, let me thank the Senator from New Hampshire not just for her kind and warm remarks, but also for the great contribution she has made to our committee. It has been an extraordinary launch for her, if I may put it that way. I think--and I know our Presiding Officer would agree with me on this because he has been a witness as well--it has been a major contribution.

I thank the Senator. She has the kind of experience and is so committed to the security of this country that the Senator is already venerable as a member of our committee.

I yield the floor.

If the Senator from Alabama, our friend, would yield for one second.

We are then on the regular order; is that correct?

So the regular order is the Levin-McCain amendment; is that correct?

Mr. President, I ask unanimous consent to call up the following amendments, the first four on behalf of Senator Jack Reed, Nos. 1146, 1147, 1148, and 1204; a fifth for Senator Reed, amendment No. 1294; No. 1293, a Levin amendment; No. 1206, a Boxer amendment; and No. 1292, a Menendez amendment; and I then ask unanimous consent that we return to the regular order.

Mr. President, I ask unanimous consent that the pending amendment be set aside and that the following amendments be called up en bloc.

They are, Senator Sherrod Brown, 1259, 1260, 1261, 1262, 1263; Senator Leahy, 1080; Senator Wyden, 1296; Senator Pryor, 1151, 1152; and Senator Bill Nelson, 1209, 1210, 1236, and 1255.

Mr. President, I ask for the regular order after all of those actions are taken.

Mr. President, I ask unanimous consent to call up five amendments en bloc which have been cleared by myself and the ranking member as follows: amendment No. 1071 on behalf of Senator McCain, to require the Secretary of Defense to report on all information with respect to the Evolved Expendible Launch Vehicle Program that would be required if the program were designated as a major defense acquisition program not in the sustainment phase; amendment No. 1086 on behalf of Senators Roberts and Moran, to authorize and request the President to award the Medal of Honor posthumously to CPT Emil Kapaun of the U.S. Army for acts of valor during the Korean War; amendment No. 1106 on behalf of Senator McCain, to require a report on the status of the implementation of accepted recommendations in the Final Report of the 2010 Army Acquisition Review Panel; amendment No. 1140 on behalf of Senator Casey, to require a report by the Comptroller General on the Department of Defense Military Spouse Employment Program; and amendment No. 1219 on behalf of myself, to provide authority to order military Reserves to Active Duty to provide assistance and response to a disaster or emergency.

Mr. President, I ask unanimous consent that the Senate consider the amendments en bloc, the amendments be agreed to, and the motions to reconsider be laid upon the table.